IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

 : 

MICHELE RICCI : 

 : CIVIL ACTION 

 Plaintiff, : 

 : 

 v. : 02-CV-4330 

 : 

AETNA, INC. d/b/a AETNA U.S. : 

HEALTHCARE and AETNA LIFE : 

INSURANCE COMPANY : 

 : Electronically Filed 

 Defendants. : 

 : 

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM 

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND 

REQUEST FOR REMOVAL OF CASE FROM CIVIL SUSPENSE

 Defendants, Aetna Inc., d/b/a/ Aetna U.S. Healthcare and Aetna Life Insurance Company 

(“Aetna”), by and through its undersigned attorneys, hereby file this Supplemental Memorandum 

in support of its Motion for Summary Judgment, which is presently pending before this Court. 

I. INTRODUCTION

The parties filed their respective Motions for Summary Judgment in this matter on July 

28, 2003. By Order dated October 30, 2003, this Court placed this matter in civil suspense after 

a notice of appeal was filed in Barber v. Unum Life Insurance Co. of America, 383 F.3d 134 (3d 

Cir. 2004). The issue to be decided by the Third Circuit in Barber was whether a bad faith claim 

based on a denial of insurance benefits is preempted by Employee Retirement Income Security 

Act, 29 U.S.C. §1001, et seq. (“ERISA”), an issue that was also present this matter at that time. 

This case remains in civil suspense, and the parties’ motions for summary judgment are still 

pending. 

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On November 3, 2003, several days after this case was placed in civil suspense, the 

United States Supreme Court granted a petition for a writ of certiorari in another case of great 

magnitude captioned Aetna Health Inc. v. Davila. On June 21, 2004, the Supreme Court decided 

Davila, finding that the state law claims asserted by the plaintiffs against their insurance carriers 

were completely preempted by ERISA. Aetna Health Inc. v. Davila, 124 S.Ct. 2488 (2004). 

Shortly after the Supreme Court’s decision in Davila, on July 27, 2004, the undersigned 

counsel wrote a letter to this Court, setting forth Aetna’s position that Davila had a dispositive 

impact on Plaintiff’s bad faith claim, and asking the Court to remove the matter from civil 

suspense to rule on the pending motions. On September 7, 2004, echoing the Supreme Court’s 

ruling in Davila, the Third Circuit issued an opinion in Barber holding that bad faith claims, such 

as that attempted by Plaintiff here, are preempted by ERISA. See Barber, 383 F.3d at 144. 

Because the issues that caused the Court to place this matter in civil suspense have now been 

resolved, there is no longer any reason for this matter to remain in civil suspense. Accordingly, 

by this memorandum, Aetna renews its request that the Court remove this matter from civil 

suspense to rule on the pending motions. 

Additionally, there have been several other recent pertinent legal developments, in the 

form of additional case law on point, that further confirm the invalidity of Plaintiff’s claim, even 

when properly cast as a denial of benefits claim under ERISA. These additional authorities are 

discussed in this memorandum, below, which Aetna respectfully submits in order to further 

confirm the grounds for dismissal of Plaintiff’s claims, as set forth in Aetna’s Motion for 

Summary Judgment, and as validated in recent legal opinions by various courts. 

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II. ARGUMENT

A. Aetna Respectfully Requests That This Case Be Removed from Civil Suspense 

Since The Third Circuit Has Decided Barber v. Unum. 

In an Order dated October 30, 2003, this Court placed this case in civil suspense due to the 

fact that the issue of whether ERISA preempts Pennsylvania’s bad faith statute was then “unsettled” 

in the Third Circuit. See Order dated 10/30/03. In its letter to the Court dated July 27, 2004, Aetna 

respectfully requested that this case be removed from civil suspense and the summary judgment 

motions decided, due to the impact of the Supreme Court’s landmark Davila decision on this case. 

Aetna now respectfully renews this request, and submits that the Third Circuit’s decision in Barber 

v. Unum resolves the split among Eastern District judges that existed at the time the summary 

judgment motions were filed, and removes any and all doubt about the proper disposition of a bad 

faith claim based on a denial of benefits under ERISA. 

In its summary judgment motion, Aetna argued, inter alia, that Plaintiff’s bad faith claim 

must be dismissed because it is preempted by ERISA. Since the Third Circuit has now voiced its 

agreement on this issue, and has given the courts explicit guidance on the disposition of a bad faith 

claim like that asserted by Plaintiff here, there is no longer any reason for this case to be in civil 

suspense and Aetna’s summary judgment motion is ripe for decision. As discussed below, it is now 

clear as a matter of law that Plaintiff’s bad faith claim cannot survive as a matter of law, and must 

be dismissed. 

B. The Third Circuit’s Decision in Barber v. Unum Mandates Dismissal of 

Plaintiff’s Bad Faith Claim. 

 In Barber, the Third Circuit examined a plaintiff’s claim that mirrors the factual 

circumstances and legal claims alleged by Plaintiff in this case. There, an employee whose long 

term disability benefits were terminated asserted state law claims including breach of contract and 

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bad faith against the insurer who terminated the benefits. Barber, 383 F.3d at 136. Applying the 

guiding principles set forth in Pilot Life [Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)], Rush 

Prudential [HMO, Inc. v. Moran, 122 S. Ct. 2151 (2002)], and, most recently, Davila, the Third 

Circuit in Barber concluded that Pennsylvania’s bad faith statute, 42 Pa.C.S. §8371, is preempted 

“because it is a remedy that allows an ERISA-plan participant to recover punitive damages for bad 

faith conduct by insurers, supplementing the scope of relief granted by ERISA. . ..” Id. at 140-41. 

 As in Davila, Plaintiff’s claims here clearly fall within the scope of ERISA’s civil 

enforcement mechanism because Plaintiff seeks to recover benefits due under the terms of an 

employee welfare benefit plan and/or to enforce her rights under the terms of the plan. See id.; 

Russo v. Abington Memorial Hosp., 881 F. Supp. 177, 181 (E.D. Pa. 1995) (citing 29 U.S.C. § 

1132(a)(1)(B)); Institute of Penn. Hosp. v. Travelers Ins. Co., 825 F. Supp. 727, 731 (E.D. Pa. 

1993) (plaintiff-hospital’s claim for payment in full for the medical services and benefits 

pursuant to an employee benefit plan preempted by ERISA.). See also Pilot Life, 481 U.S. at 41 

(common law contract and tort claims preempted by ERISA); Metropolitan Life, 481 U.S. at 62-63 

(common law contract and tort claims preempted by ERISA); Shiffler v. Equitable Life Assurance 

Society of the United States, 838 F.2d 78, 82 (3d Cir. 1988) (breach of contract claim preempted by 

ERISA); Garner v. Capital Blue Cross, 859 F. Supp. 145, 148 (M.D. Pa. 1994) (claims for 

negligent denial of benefits preempted by ERISA), aff’d, 52 F.3d 314 (1995); Arber v. Equitable 

Beneficial Life Insurance Co., 848 F. Supp. 1204, 1216-17 (E.D. Pa. 1994) (breach of contract 

claim preempted by ERISA). 

To the extent Plaintiff relied upon the decision in Rosenbaum v. Unum Life Ins. Co., 2002 

WL 1769899 (E.D. Pa. Jul. 29, 2002) in filing a purported “bad faith” claim against Aetna, the 

Barber Court has now confirmed that any such reliance was misplaced. See Barber, 383 F.3d at 

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141-42.1

 Prior to the Barber Court’s recent confirmation that claims brought pursuant to 

Pennsylvania’s bad faith statute are not “saved” from ERISA preemption under §514(b)(2)(A), 

other plaintiffs like Ricci have argued that 42 Pa.C.S. §8371 is a law that “regulates insurance,” and 

therefore claims asserted thereunder are “saved” from preemption. However, relying upon Supreme 

Court precedent, including the recent decision in Aetna Health Inc. v. Davila, the Third Circuit held 

that any such argument for “saving” a bad faith claim is “unavailing.” Id. (citing Davila, 124 S.Ct. 

at 2500). 

Citing Pilot Life and Davila, the Third Circuit emphasized the Supreme Court’s finding that 

“Congress’ policy choices reflected in ERISA’s exclusive remedial provision would be undermined 

by state laws allowing alternate remedies[.]” Id. at 141. Thus, the Third Circuit concluded that 

“even if 42 Pa.C.S. §8371 were found to ‘regulate insurance’ under the saving clause, it would still 

be preempted because the punitive damages remedy supplements ERISA’s exclusive remedial 

scheme.’” Id. 

Of equal importance, especially given Plaintiff’s reliance on the Rosenbaum decision, the 

Third Circuit held that 42 Pa.C.S. §8371 does not “regulate insurance.” The Barber Court 

explained that the district court erred in applying the Supreme Court’s decision in Miller [538 U.S. 

329] to find that Pennsylvania’s bad faith statute “regulates insurance” under the savings clause. Id. 

at 141-43. “[U]nder the Miller test, Pennsylvania’s bad faith statute does not ‘regulate insurance’ 

within the meaning of ERISA’s saving clause and is expressly preempted by ERISA.” Id. at 144. 

The Third Circuit’s decision in Barber effectively affirms the decisions of numerous other 

courts in this district, which have consistently found such claims to preempted by ERISA, and not 

 

1

 In Rosenbaum v. Unum Life Insurance Co., 2002 WL 1769899 (E.D. Pa. Jul. 29, 2002), the Honorable Clarence 

Newcomer held that bad faith claims were not preempted by ERISA because bad faith claims fell into ERISA’s 

“savings” clause. 

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“saved” therefrom. See, e.g., Campbell v. Prudential Insurance Co. of America, 2002 WL 462085, 

at *1 (E.D. Pa. March 25, 2002 (Ludwig, J.) (bad faith, declaratory judgment and breach of contract 

claims preempted); Cannon v. The Vanguard Group, 1998 WL 512935 at *3 (E.D. Pa. 1998) (Reed, 

J.) (bad faith claims preempted, listing cases); Rallis v. Transworld Music Corp., 1994 WL 96264 at 

*2-*4 (E.D. Pa. 1994) (Buckwalter, J.) (declaratory judgment, contract and bad faith claims 

preempted); Murphy v. Metropolitan Life Ins. Co., 152 F. Supp. 2d 755, 758 (E.D. Pa. 2001) (bad 

faith and consumer protection claims preempted); Brooks v Educators Mutual Life Ins. Co., 206 

F.R.D. 96, 102 (E.D. Pa. 2002) (breach of contract and bad faith claims preempted); Miller v. Aetna 

Healthcare, 2001 WL 1609681 at *5 (E.D. Pa. Dec. 12, 2001) (Waldman, J.) (unfair trade practices 

and bad faith claims preempted). 

 Thus, there is no longer any good law upon which Plaintiff could rely to “save” her bad faith 

claim from preemption, and Plaintiff’s “bad faith” claim simply cannot survive. As the Third 

Circuit has recently confirmed, applying Pennsylvania’s bad faith statute to ERISA plans would 

improperly set up an alternative or additional form of relief in violation of ERISA’s purpose to 

provide exclusive remedies for violations of the guarantees of ERISA and of plans promulgated 

pursuant to ERISA. Pennsylvania’s bad faith statute is preempted by ERISA, and Plaintiff’s bad 

faith claim must be dismissed. 

C. Aetna Properly Concluded That Plaintiff Was Ineligible for Continued Long 

Term Disability Benefits Under the Plan. 

 As set forth in Aetna’s original moving papers, Aetna had ample grounds upon which to 

terminate Plaintiff’s long term disability benefits. See Aetna’s Motion for Summary Judgment and 

Memorandum of Law in support thereof, which described in detail the various grounds for 

termination of benefits including, inter alia, that substantial medical evidence did not support a 

finding of chronic fatigue syndrome (“CFS”), that Plaintiff never provided the results of blood tests 

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or any other evidence of a physical condition supporting her disability, and that Plaintiff never 

sought treatment for the physical condition of CFS. Id. 

 Although the Plan places an obligation on Plaintiff to obtain and continue treatment for 

her disabling condition, and to provide evidence of her continuing disability in exchange for 

continued entitlement to the benefits,2

 it is undisputed that Plaintiff was not under the care of any 

physician for the physical condition that purportedly caused her disability - - CFS. Rather, 

Plaintiff was receiving treatment for a mental condition from a psychiatrist, Dr. Schwartz, for 

undifferentiated somatoform disorder or the “sadness and anxiety” caused by her CFS. 

 Thus, although Dr. Schwartz may have been treating Plaintiff for the sadness and anxiety 

she experienced as a result of her chronic fatigue, no physician was treating Plaintiff for the 

underlying physical condition of CFS, the allegedly disabling condition. Under the terms of the 

Plan, Aetna correctly concluded that Plaintiff was not under the care of a physician for her 

alleged “disabling condition” -- CFS. The bottom line is that Plaintiff cannot have it both ways: 

If she claims her disability was as a result of the depression and anxiety she was experiencing, 

then her benefits were terminated properly on the basis of the plan provision which places a 24-

month limit on benefits for disability caused to any extent by a mental condition.3

 On the other 

hand, if she claims that her disability is not, in any substantial way, caused by her mental 

condition, then she clearly was not and has not been under the care of a physician for her 

disabling condition, CFS. 

 

2

 Here, the Plan states that: “You will not be deemed to be under the care of a physician on any day more than 31 

days before the date he or she has seen and treated you in person for the disease or injury that caused the disability.” 

See Exhibit “A” to Aetna’s Statement of Undisputed Facts at p. 3 (emphasis added). The Plan further states: 

“Certification of a period of disability will be denied if any one of the following apply: * * * You are not under the 

care of a physician. Id. Under the terms of the Plan, the certified period of disability ends on “the date you cease to 

be under the care of a physician.” Id. at p. 6. 

3

 The Plan provides that “[a] “Certified Period of Disability” will end after twenty-four months of benefits if the 

claimant’s disability is caused to any extent by a mental condition.” (emphasis added) 

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 In the nearly two years that have passed since the filing of Aetna’s summary judgment 

motion, there have been a number of court decisions dealing with the issues raised in this matter 

that confirm the propriety of Aetna’s decision and this new authority should be considered by 

this Court in deciding the parties’ summary judgment motions. These include cases dealing with 

the weight to be given to the opinion of the claimant’s attending physician, the need for a 

disability claimant to be under the care of a physician for the disabling condition, and the 

recognition that the mere fact that a claimant has CFS or ailments like it (e.g., fibromyalgia) does 

not – without convincing evidence of actual impairment – demonstrate that one is disabled and 

entitled to benefits. In addition to the cases cited by Aetna in its Memorandum of Law 

supporting its Motion for Summary Judgment, Aetna submits the following authority in further 

support of its request that summary judgment be entered in its favor. 

 In Johnson v. Long Term Disability Plan, 2004 WL 2318901 (N.D. Ill. Oct. 8, 2004), the 

court granted the defendant plan’s motion for summary judgment based on its finding that the 

defendant’s decision to terminate benefits was not arbitrary and capricious. Id. at *11. As in this 

case, the plaintiff in Johnson was no longer eligible for benefits because she did not comply with 

the Plan’s requirement that she receive proper medical care for the alleged disabling condition. 

Id. at *9-10. Notably, the court opined that the purpose of such plan provisions is “to ensure 

that a disabled participant take appropriate steps to restore her health, if possible, and that the 

Plan avoid paying unwarranted benefits.” Id. at *10. Thus, if a participant is not in compliance 

with the Plan’s requirements, it is entirely proper for the claims administrator to find that she is 

ineligible for continued benefits. Id. See also LaPrease v. Unum Life Ins. Co. of America, 347 

F.Supp.2d 944 (W.D. Wash. 2004) (“Further, Mr. LaPrease did not provide evidence that he was 

under the regular care of a physician as required by the Plan.”). Teplick v. Boeing Company 

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Employee Health and Welfare Benefit Plan, 2004 WL 1058172 (D. Or. May 11, 2004) (finding 

Aetna, as claim administrator, “justified in terminating benefits” based upon finding that the 

claimant failed in his obligation under the plan to remain under the care of a physician and 

supplement the medical evidence as required by Aetna). 

 Moreover, given that Aetna has been granted discretionary authority to administer claims 

for benefits under the Covance Plan, the Court may not substitute its judgment for Aetna’s and 

assume the role of claims administrator, see Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 

(3d Cir. 1993), but must grant deference to Aetna’s judgment in assessing how much weight 

Aetna chose to afford the treating physician’s statement. In assessing a claims administrator’s 

decision to terminate long term disability benefits based on alleged fibromyalgia (a condition often 

likened to CFS due to a lack of objective criteria supporting the condition),4

 the Ninth Circuit Court 

of Appeals recently explained that a claims administrator, like Aetna, must scrutinize a treating 

physician’s conclusory finding of disability because 

[s]omebody has to make a judgment as to whether a medical condition prevents a 

person from doing her work, and the governing instrument assigns the discretion 

to the claims administrator. With a condition such as fibromyalgia [or CFS], 

where the applicant’s physicians depend entirely on the patient’s pain reports for 

diagnosis, their ipse dixit cannot be unchallengeable. That would shift the 

discretion from the administrator, as the plan requires, to the physicians chosen by 

the applicant . . . . It is not for [the] court to decide that fibromyalgia [or CFS] 

should be treated by ERISA [claims] administrators as disabling in a given case. 

That is a medical and administrative judgment committed to the discretion of the 

[claims] administrator based on a fair review of the evidence. 

Jordan v. Northrop Grumman Corp Welfare Benefit Plan, 370 F.3d 869, 878, 880 (9th Cir. 

2004). Likewise, the Third Circuit recently confirmed that “[u]nder the Supreme Court’s recent 

 

4

 Like chronic fatigue syndrome, “fibromyalgia’s cause or causes are unknown, there is no cure, and, of greatest 

importance to disability law, its symptoms are entirely subjective.” Jordan, 370 F.3d at 872. Also like chronic 

fatigue syndrome, fibromyalgia is “a physical rather than a mental disease.” Id. at 873. 

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decision in Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003),5

 administrators of 

ERISA plans are not obligated to accord special deference to the opinion of a claimant’s treating 

physician. Metlife [the claims administrator] is therefore justified in placing reliance on the 

opinions of its own consulting doctors and need not provide a special explanation of its decision 

to do so.” Nichols v. Verizon Communications Inc., 2003 WL 22384772 (3d Cir. 2003) (citing 

Black & Decker). 

 Similarly, Aetna here was not required to give special deference to the findings of 

Plaintiff’s treating psychiatrist that Plaintiff was disabled. To the extent Aetna relied on its own 

medical consultants in deciding to terminate Plaintiff’s claim, and did not defer to the opinion of 

Plaintiff’s treating psychiatrist, such reliance was appropriate and entirely proper under the law, 

as recently articulated by the Supreme Court and echoed by the Third Circuit. Moreover, as 

discussed above, Aetna was clearly entitled to find that Plaintiff was ineligible for benefits under 

the plan because she was not under the care of a physician for the physical condition of chronic 

fatigue syndrome. 

 Finally, as many recent cases have recognized, even if Plaintiff actually has chronic 

fatigue syndrome,6 this does not mean that she is automatically eligible for benefits under the 

Plan. Rather, the appropriate inquiry is whether Plaintiff is totally disabled. To be sure, not 

 

5

 In Black & Decker, the Supreme Court recognized the need to encourage employers to adopt benefit plans by 

allowing them the freedom to administer plans in a manner that they can afford to fund, such as by reliance on 

opinions of reviewing physicians. 

6

 In plaintiff’s case even this is not clear, as her CFS diagnosis appears to be based solely on her own reports of 

fatigue (which could easily be the result of taking care of her two young children). Plaintiff never provided blood 

tests, as requested by Aetna, to rule out the possibility of her alleged ailments being the result of some other physical 

cause or disease. See Statement of Facts and Aetna’s original moving papers.

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everyone with CFS is affected the same way or to the same degree.7

 According to the Center for 

Disease Control (“CDC”): 

Some [CFS] patients recover to the point that they can resume work and other 

activities, but continue to experience various or periodic CFS symptoms. Some 

patients recover completely with time, and some grow progressively worse. 

Chronic Fatigue Syndrome, at 5 CDC (May 2004) (http://www.cdc.gov/ncidod/diseases/ 

cfs/info.htm). The administrative record of Plaintiff’s claim, submitted with Aetna’s original 

motion, contains no credible evidence, other than statements from the psychiatrist (who was not 

treating her CFS but treating only the sadness and depression that accompanied it) based on her 

subjective symptoms, that she was physically incapable of performing the tasks of a reasonable 

occupation. 

 Consistent with this view, various courts, including the Third Circuit and Eastern District 

courts have recently repeatedly found that that persons diagnosed with CFS are not “totally 

disabled.” See, e.g., Tesche v. Continental Cas. Co., 2004 WL 1973832, at 2-3 (3d Cir. 2004) 

(upholding denial of LTD benefits despite diagnoses of CFS); Crosby v. Barnhart, 2004 WL 

1096413, at 1-2 (3d Cir. 2004) (despite having CFS, claimant was not totally disabled under 

SSA); Garside v. Barnhart, 2004 WL 1510029, *2 (10th Cir. 2004) (affirming judgment of the 

district court that despite CFS and other conditions, disability benefits were properly denied); 

Holiday v. Barnhart, 2003 WL 22287408, at 1-3 (3d Cir. 2003) (despite diagnosis of CFS, 

claimant was not totally disabled); Wallace v. Barnhart, 2003 WL 21640568, *8 (E.D. Pa. 2003) 

(agreeing with ALJ’s determination that, despite CFS, plaintiff was able to perform light work 

and thus able to perform his previous employment). 

 

7

 As one court aptly explained, “[i]t cannot be assumed that everyone claiming to be totally disabled [due to CFS] is, 

in fact, totally disabled.” Ingram v. Martin Marietta Long Term Disability Income for Salaried Employees of 

Transferred GE Operations, 35 F.Supp.2d 1190, 1195 (C.D. Cal. 1999). 

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 Thus, very recent decisions from various courts (as well as the case law cited by Aetna in 

its opening briefs) confirms that Aetna’s decision to terminate Plaintiff’s long term disability 

benefits was entirely proper under the facts and the law, and cannot, under any circumstances, be 

construed as arbitrary and capricious. There can be no genuine dispute that Aetna is entitled to 

summary judgment on Plaintiff’s claims. 

III. CONCLUSION

 For all the foregoing reasons, as well as those set forth in Aetna’s Motion for Summary 

Judgment, its Brief in support of the Motion, its Reply Brief, and its Opposition to Plaintiff’s 

Motion for Summary Judgment, Aetna respectfully requests that this Court remove this case 

from civil suspense and enter an Order dismissing Plaintiff’s claims. 

 Respectfully submitted, 

 /s/ Kathryn M. Schilling 

ELLIOTT GREENLEAF KATHRYN M. SCHILLING 

 & SIEDZIKOWSKI Union Meeting Corporate Center 

 925 Harvest Drive 

 Blue Bell, PA 19422 

 (215) 977-1000 

DATED: May 2, 2005 Counsel for Defendants 

 

 

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CERTIFICATE OF SERVICE

 The undersigned certifies that on this day a copy of the foregoing is being served upon 

the persons and in the manner indicated below: 

U.S. Postal Service, First Class Mail

Theodore A. Schwartz, Esquire 

1620 Locust Street 

Philadelphia, PA 19103-6392 

Counsel for Plaintiff 

 /s/ Kathryn M. Schilling 

 Kathryn M. Schilling, Esquire 

DATED: May 2, 2005 

 

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